New York State Court of Claims

New York State Court of Claims

BOND v. THE STATE OF NEW YORK, #2002-031-003, Claim No. 102186, Motion Nos. M-64111, CM-64209


Defendant's cross-motion to dismiss for failure to comply with Court of Claims Act §§10(3) and 11(a). Claim was improperly served by regular mail upon the Attorney General. Claim dismissed

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
HON. ELIOT SPITZER, Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 19, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant's motion for summary judgment and Defendant's cross-motion for an order dismissing the claim: Claimant's Notice of Motion, filed October 2, 2001 1

Affidavit of Robert Bond sworn to September 25, 2001, and attached exhibits 2

Defendant's Notice of Motion, filed October 22, 2001 3

Affidavit of Richard B. Friedfertig, Esq., sworn to October 19, 2001,

and attached exhibits 4

Claimant's unsworn reply to Defendant's cross-motion filed

November 27, 2001, and attached exhibits 5

Filed papers: Claim, filed March 27, 2000; Answer filed May 2, 2000 6

Claimant commenced this action to recover the value of property allegedly lost by the Defendant on January 3, 2000. Claimant brings this motion for summary judgment asserting that Defendant has admitted, or at least that the "evidence is clear and unrefutable" that the Defendant is responsible for losing Claimant's property. Claimant asserts that the only question to be resolved is the value of the property that was lost. The Claimant's motion is defective in several respects but, as discussed below, the necessity of analyzing Claimant's motion further is obviated by the Defendant's cross-motion.

Defendant seeks, inter alia, dismissal of the claim based upon Claimant's failure to serve the claim upon the Attorney General by certified mail, return receipt requested, as required by Court of Claims Act § 11(a).[1] Claimant admits that the claim was not served upon the Attorney General by certified mail, return receipt requested. He asserts in his unsworn reply to Defendant's motion that "Defendant constructively prevented Claimant from complying" and that he had "requested that the correspondence to the Attorney General's office be sent certified mail." I also note that in a document entitled "Claimant's Opposition In Reply To Defendant's Answer" which is a part of Defendant's Exhibit A, Claimant indicates that he "placed his legal document's (sic) in a U.S. Mailbox, with a letter attached to the Attorney General's (sic) requesting it be forwarded Certified Return Receipt Requested."

Court of Claims Act §11 (a) provides, in relevant part, that a copy of the claim at issue "shall be served personally or by certified mail, return receipt requested, upon the attorney general." Unfortunately, regardless of how the failure to properly serve the claim came about, the requirements set forth in Court of Claims Act §11 are jurisdictional in nature and, as such, must be strictly construed (see, Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). The Court is not free to disregard this requirement. "[D]iscretion, equity, or a harsh result may not temper application of a rule of law" ( Martin v State of New York, 185 Misc 2d 799, 804).

Claimant has failed to meet the literal requirements of Court of Claims Act §11. Service upon the Attorney General by first class mail was improper (see, Dreger v New York State Thruway Authority, 81 NY2d 721; Negron v State of New York, 257 AD2d 652; Philippe v State of New York, 248 AD2d 827).

Based upon the foregoing it is:

ORDERED, that Claimant's motion for summary judgment is denied. Defendant's cross-motion for dismissal of the Claim is granted, the alternative relief requested by Defendant is denied as moot, the Clerk is directed to close the file.

February 19, 2002
Rochester, New York

Judge of the Court of Claims

[1]Defendant also requests that the claim be dismissed due to Claimant's failure to pay a filing fee as required by the April 12, 2000 order of the Hon. Susan Phillips Read. This fee has been paid. Defendant also requests the alternative relief of preclusion due to the alleged failure of Claimant to respond to Defendant's discovery demands.